Back in September of last year, we reported on an NLRB decision finding that a Connecticut sports bar, Triple Play Sports Bar & Grille, had unlawfully terminated two employees – one of whom commented on a former employee’s criticism of the employer’s handling of the tax withholding on employee paychecks and the other who clicked “Like” in response to that comment. This past week, the Second Circuit, on Triple Play’s petition for review, upheld the Board’s decision, in a case captioned Three D, LLC, d/b/a Triple Play Sports Bar & Grille v. NLRB.

In its decision, the Second Circuit held that the employees’ respective comment and “Like” were protected concerted activity under Section 7 of the National Labor Relations Act because they both related to ongoing employee concerns over the employer’s workplace tax withholding and their resulting tax liabilities. The court also concluded that the employees’ Facebook communications were not so disloyal or defamatory as to lose the protection of the Act. Specifically, the court found that the employees did not disparage the employer’s products or services and their communications were not “maliciously untrue.”

The court was not swayed by any profanity contained in the one employee’s comment because it was not made in the presence of or directed at customers and did not reflect the employer’s brand. According to the court, accepting Triple Play’s argument that the Facebook discussion took place “in the presence of customers” could lead to the undesirable result of chilling virtually all employee speech online. “Almost all Facebook posts by employees have at least some potential to be viewed by customers.” As a result, the court upheld the Board’s order requiring the employer to offer reinstatement and full back pay to the terminated employees.

In addition, the court upheld the Board’s finding that the employer’s internet/blogging policy was unlawful under the National Labor Relations Act. That policy provided in relevant part as follows:

“[W]hen internet blogging, chat room discussions, . . . or other forms of communication extend to employees … engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. . . . In the event state or federal law precludes this policy, then it is of no force or effect.”

In short, the court upheld the Board’s finding that employees could reasonably construe this policy as “proscribing any discussions about their terms and conditions of employment deemed ‘inappropriate’ by [Triple Play].”

Takeaways

The Second Circuit’s decision underscores that it won’t be easy to get the courts to rein in the Board’s expansive view of employee rights to engage in communications and activity on social media that are contrary to their employers’ interests. To help avoid liability, employers should therefore:

Have their social media policies reviewed by experienced counsel to eliminate provisions that can be reasonably misconstrued to restrict employees from discussing the terms and conditions of their employment with others; and

Understand, before disciplining employees for any communication or activity on social media, that otherwise protected communications or activities will not lose their protection under the National Labor Relations Act simply because they disparage or are uncomplimentary of the employer, contain statements that are not true, or contain profanity.

Porter Wright Morris & Arthur LLP

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